And Bloomberg did a DMCA takedown through youtube, copystrike in parlance which pulled the video down for a week. GN had no recourse other than to wait and counterclaim.
Week timed out, Bloomberg did nothing but be the bully.
Louis Rossmann's excellent explainer video here on the Bloomberg bit: https://www.youtube.com/watch?v=6RJvrTC6oTI
As always, Louis is being a bit sensationalist and stretches the truth to whip up outrage. Contrary to what he claims, GN could have easily quoted the president without Bloomberg's video, and that would be fine. "that outlet now has a monopoly on who is able to quote the president" is just a totally false premise. Moreover he tries to argue that GN's video falls under fair use, because it's a 1 minute clip in a 3 hour video. However it's not hard to think of a rebuttal to this. If news organizations can copy each other's clips of official speeches, who would bother going out and making such recordings? Usually how this would be resolved would be by citing precedents, but he doesn't bother citing any.
Brother, wait until you learn about the associate press.
In U.S. copyright law, the four factors evaluated to judge fair use are:
1: Purpose and character of the use: including whether the use is commercial or nonprofit educational, and whether it is transformative.
2: Nature of the copyrighted work: for example, whether the work is more factual or more creative.
3: Amount and substantiality used: both how much was taken and whether it was a qualitatively important part of the work.
4: Effect on the market: whether the use harms the potential market for or value of the original work.
Courts weigh all four factors together. There is no fixed rule like "under 30 seconds" or "under 10%." GN's use seems to satisfy all four factors.
The same AP that licenses content to its members and charges non-members for the privilege of reusing their content?
"Many newspapers and broadcasters outside the United States are AP subscribers, paying a fee to use AP material without being contributing members of the cooperative. As part of their cooperative agreement with the AP, most member news organizations grant automatic permission for the AP to distribute their local news reports. "
> GN's use seems to satisfy all four factors.
It's weakest at #1 and #4.
#1: it's a commercial piece of work (so far as I can tell GN isn't a non-profit), and the use of the clip specifically isn't critical to the work. If you're critiquing a movie or something, and need to show a screengrab to get your point across, then that makes sense, but if the purpose of the video is just to establish "Trump said this", the video isn't really needed.
#4: see above regarding making recordings of official speeches.
Moreover I'm not trying to argue that GN is definitely not fair use, only that there's a plausible case otherwise. If there's actual disagreement over it's fair use or not, then the DMCA process is working as intended, and Bloomberg isn't abusing it as Louis implies.
[responses to edited-out portion of parent comment]
Re: #1, GN's work while commercial is an educational investigative journalism / documentary piece which are well established users of Free Use protection. GN's use is absolutely transformative.
#4: Bloomberg would have to prove a financial loss to have standing. That would mean that GN must have no other option than to use Bloomberg's clip, and pay the license, which I don't think would fly. GN would have just produced the segment differently.
readded.
edit: responses
>Re: #1, GN's work while commercial is an educational investigative journalism / documentary piece which are well established users of Free Use protection. GN's use is absolutely transformative.
I'm not going to argue too hard over whether taking a 1 minute clip for a 3 hr video counts as "transformative" because this is getting enough into the legal weeds that you'd want to start citing precedents, rather than having two armchair lawyers duking it out with random arguments.
That said, "investigative journalism / documentary piece" angle seems weak. It's not more "educational" than any other news organization (eg. Bloomberg or The New York Times), but apparently they still go out to record speeches, even though they can supposedly piggy back off another organization's footage under fair use.
>#4: Bloomberg would have to prove a financial loss to have standing. That would mean that GN must have no other option than to use Bloomberg's clip, and pay the license, which I don't think would fly. GN would have just produced the segment differently.
Right, but the purpose of DMCA is to take down infringing works, not to award damages. Whether they have losses or not is irrelevant. Moreover the implied argument of "it might be copyright infringement but Bloomberg isn't losing any money so they shouldn't be able to do takedowns" seems... questionable.
A practical way to think about it is this:
What is the new use for? Courts look first at whether the secondary use serves a different purpose from the original, not just whether it looks different. Uses for criticism, commentary, parody, scholarship, search/indexing, or other new functions often have a stronger transformative argument.
Is there new expression, meaning, or message? That still matters, but after Warhol, a claimed new meaning by itself is usually not enough, especially when the secondary use is being exploited in a similar commercial market as the original. The Court emphasized that the inquiry is tied to the specific use at issue and whether that use has a distinct purpose.
Does it substitute for the original in the same market? Even if the new work has some new meaning, it looks less transformative if it is serving basically the same licensing or audience function as the original. That overlaps with factor 4 as well.
How much was taken, and was that amount justified by the new purpose? A use is more defensible when it takes only what is reasonably needed for the transformative aim. In parody, for example, some copying may be necessary to “conjure up” the original, but not more than needed.
All of which I think can fairly be evaluated in GN's favor. Though as you point out, the lawyers are paid to argue each point.
The content creators know this, and they'll leverage their money and legal teams to sue for copyright violation, ignoring fair use. Fair use is a valid defense, but the defense must be presented and adjudicated, and that takes time and money.